PEOPLE v. PORTILLO

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PEOPLE

v.

PORTILLO

June 23, 2000

No. 213444

Wayne Circuit Court

Criminal Division

LC No. 97-007567

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v.

DAYMON PORTILLO,

Defendant-Appellant

Before: Owens, P.J., and Neff and Fitzgerald,
JJ.

FITZGERALD, J.

Defendant, who was charged with four counts of
assault with intent to do great bodily harm less than murder, MCL
750.84; MSA 28.279, and felonious driving, MCL 752.191; MSA
28.661, was convicted by a jury of four counts of the lesser
offense of felonious assault, MCL 750.82; MSA 28.277, and
felonious driving. Defendant was tried jointly with codefendant
Jeremiah Saunders, who was also convicted of four counts of
felonious assault and felonious driving. Defendant was sentenced
to two years’ probation, including completion of a ninety to
120 day Special Alternative Incarceration (boot camp) program. He
appeals as of right. We affirm.

Defendant and his codefendant were jointly
tried and both were represented by the same retained attorney.
Defendant argues that the court rule governing joint
representation, MCR 6.005(F), violates his constitutional right
to equal protection, US Const, Am XIV; Const 1963, art 1,
§ 2, because it mandates separate counsel for jointly
charged indigent defendants but does not mandate separate counsel
for jointly charged defendants where counsel is retained. Because
MCR 6.005(F) does not restrict a defendant’s right to retain
counsel of his own choosing, we do not believe that the
"strict scrutiny" test is applicable. People v Pitts,
222 Mich App 260, 272-273; 564 NW2d 93 (1997). Instead, we apply
the "rational basis" test to review the
constitutionality of MCR 6.005(F). Id. at 273.

Under the "rational basis" test, the
legislation, or in this case MCR 6.005(F), is presumed to be
constitutional and the party challenging it has the burden of
proving that it is arbitrary and, therefore, irrational. Pitts,
supra at 273. The constitutionality of MCR 6.005(F) will be
upheld if the classification scheme created in it is rationally
related to a legitimate governmental purpose. Id. Under
this test, the wisdom, need, or appropriateness of the scheme is
not measured. People v Sleet, 193 Mich App 604, 607; 484
NW2d 757 (1992).

MCR 6.005(F) distinguishes between defendants
who are indigent and those who can afford to retain their own
counsel. A defendant who can afford to retain counsel on his own
cannot have that right restricted by the courts. Such a defendant
has a constitutional right to defend an action through the
attorney of his choice. Const 1963, art 1, § 13; MCL
600.1430; MSA 27A.1430; People v Arquette, 202 Mich App
227, 231; 507 NW2d 824 (1993). In contrast, an indigent defendant
is entitled to the appointment of counsel, but he does not have
the right to have counsel of his choosing appointed. People v
Ginther, 390 Mich 436, 441; 212 NW2d 922 (1973). The Supreme
Court had a rational basis for treating these classes of
defendants differently. Requiring that separate counsel be
appointed for jointly charged indigent defendants avoids problems
with conflicts of interest arising from joint representation, as
well as problems with jointly represented indigent defendants
later claiming that their rights were violated. Further,
requiring the appointment of separate counsel for jointly charged
indigent defendants is a means of assuring that indigent
defendants obtain fair trials. Therefore, defendant has not shown
that the classification scheme in MCR 6.005(F) is not rationally
related to a legitimate governmental purpose. Pitts, supra
at 273.

Defendant also argues that he was denied the
effective assistance of counsel as a result of counsel’s
joint representation of himself and codefendant Saunders. Because
defendant did not request an evidentiary hearing on this issue in
the trial court, our review is limited to the existing record. People
v Wilson, 196 Mich App 604, 612; 493 NW2d 471 (1992).

The record indicates that the trial court
complied with MCR 6.005(F) by eliciting from defense counsel the
reasons for believing that joint representation would not cause a
conflict of interest, by questioning each defendant about whether
they wished to retain separate counsel, and by finding that joint
representation would not cause a conflict of interest.
Additionally, the trial court’s questioning demonstrates that
defendant voluntarily agreed to the joint representation.
Finally, the record does not factually support defendant’s claim
that an actual conflict of interest adversely affected his
lawyer’s performance. People v Larry Smith, 456 Mich 543,
556-557; 581 NW2d 654 (1998). Therefore, appellate relief is not
warranted.